Gover v. Mann
| Decision Date | 03 March 1934 |
| Citation | 114 Fla. 128,153 So. 895 |
| Parties | GOVER v. MANN. |
| Court | Florida Supreme Court |
Suit by George T. Mann against W. D. Gover and others. From an adverse judgment, named defendant appeals. On motion to quash the appeal.
Motion denied.
BROWN J., dissenting. Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.
George M. Okell, of Miami, for appellant.
Brown & Wood and W. Davis Hamilton, all of Miami, for appellee.
In this case a motion by appellee to quash the appeal was heretofore denied without opinion. Subsequently a motion for rehearing was filed and a rehearing granted, so that the sufficiency of the entry of appeal could be re-examined in the light of what was said in the opinion of this court in Hay v. Isetts, 98 Fla. 1026, 125 So. 237.
Section 11890, Acts 1927, Laws of Florida (now section 4635, C. G L.), reads as follows:
Section 4964, C. G. L., section 3172, R. G. S., reads as follows:
In the present case the following is the complete entry of appeal as it appears in the transcript:
Katherine Irene Gideon and her husband, Robert A. Gideon; Frank S. Smith and his wife, Effie A. Smith: Frank S. Smith as Trustee; Taylor Smith and his wife, Helene Young Smith; Graydon Thomas and his wife, Lucy Thomas; Catherine Thomas, also known as Cathryn Thomas, now a single woman, but formerly the wife of Graydon Thomas; W. D. Gover and his wife, Mrs. W. D. Gover; Burdine's, Inc., a Florida corporation; Katherine Humphreys and her husband Robert Humphreys, Grace B. Conlon and her husband, R. L. Conlon, Defendants.
'Case No. 34901-D
'Bill to Foreclose Mortgage
'Notice and Entry of Appeal.
'Now comes W. D. Gover, a defendant, by and through his solicitor George M. Okell, and enters this his appeal to the Supreme Court of Florida from:
'(A) An order entered August 10, A. D. 1932, in and by which the Circuit Court overruled and denied the motion of Defendant, W. D. Gover, to strike certain portions of the Bill of complaint and also as to said order as to overruling and denying the motion of said Defendant, W. D. Gover, to dismiss the Bill of Complaint filed by Plaintiff, said order being recorded August 12, A. D. 1932 in Chancery Order Book 279 on page 239.
'(B) That the final decree entered on the 22nd day of March, A. D. 1933, said final decree being recorded in Chancery Order Book 284, page 307, in the Clerk's office of said Court.
'(C) The order of the Court made and entered in the above and entitled cause overruling and denying the exceptions of the Defendant, W. D. Gover to the Special Master's Report.
'George M. Okell
'Solicitor for W. D. Gover, Defendant.'
Indorsements on back:
'In the Circuit Court Eleventh Judicial Circuit, Dade County, Florida.
Katherine Irene Gideon, et al., Defendants
'Notice and Entry of Appeal
'Filed this 5 day of Apr. A. D. 1933 and recorded this 5 day of Apr. A. D. 1933 in Chancery Order Book 295 on page 138.
'E. B. Leatherman, Clerk Circuit Court
'By B. S. Peeler, Deputy
'George M. Okell, 34 W. Flagler St., Miami, Florida, Solicitor for W. D. Gover, Defendant.'
Chapter 11890, Acts 1927, Laws of Florida, was a highly remedial statute devised and proposed by a special commission on pleading and reactice appointed by the Governor to recommend to the Legislature needful changes in matters of procedure. See chapter 10200, Acts 1925.
The object of that act, as proposed and passed, was to make, as the statute plainly suggests, the entry of an appeal sufficient for the purpose of transferring the cause to the appellate court, if the entry of appeal identify with reasonable certainty the judgment or decree sought to be reviewed. The words 'proper parties,' as employed in the statute, were used in their broad appellate sense, and were intended to embrace all the parties which it was 'proper' to bring up by the record of an entry of appeal pursuant to law, identifying with reasonable certainty the judgment or decree sought to be reviewed by plainly describing it in the notice of entry of appeal as same should be recorded by the clerk pursuant to section 4964, C. G. L., supra.
The reference to 'proper parties' was in no respect limited to those merely formal parties who, before the statute of 1927 was enacted, could have been specifically omitted from an appeal without entailing the penalty of dismissal inflicted for want of indispensable parties.
The courts are not justified in so construing and narrowing the 1927 statute as to attribute to the Legislature a futile accomplishment in the way of simplifying the method of taking and making effective the usual forms used in taking appeals in chancery. Before the statute was enacted, this court would not have dismissed an appeal in invitum for want of any but necessary and indispensable parties to it. Gibbs v. Ewing, 94 Fla. 236, 113 So. 730; Clark v. Johnson, 91 Fla. 485, 107 So. 636.
If the holding in Hay v. Isetts, 98 Fla. 1026, 125 So. 237, and similar cases is, despite the statute, to be taken as meaning that the 1927 statute does make an entry of appeal, when duly recorded under section 4964, C. G. L., supra, sufficient to bring up as parties to such appeal those merely supernumerary parties to the decree who are proper to be brought up on an appeal from it, but who, because of the fact that they are persons who are mentioned or involved in the decree without any real interest in its affirmance or reversal by reason of the circumstance that their rights cannot be affected by the decree appealed from, then it is obvious that the 1927 statute, as thus construed, does nothing more than forbid the dismissal of an appeal for want of parties 'proper' but not necessary to it--a thing which this court has never done prior to the enactment of that statute.
Any party named in an order or decree appealed from is always a 'proper' party to any appeal from such order or decree. But a merely 'proper' party to a cause is not in every instance an indispensable or necessary party to the appeal from a decree in that cause. This is so because under our statute an appeal in chancery,...
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